Applying international law to gain justice for victims and combat impunity

 hissene habre march_credit_Stephanie Hancock_Human Rights Watch

This tactic provides a pathway for victims of severe abuses perpetrated against them to seek justice denied them in their home country. Although it may require considerable time, the application of universal jurisdiction is gaining recognition by countries around the world as an effective way to internationally combat impunity. Universal jurisdiction is a legal principle of international law that allows national courts to prosecute such crimes regardless of where they occurred or the nationality of the perpetrator or victim. Universal jurisdiction is especially effective regarding crimes considered so grave that accountability for them should concern humanity as a whole.  The trial of former Chadian dictator Hissène Habré that took place in Senegal is precedent setting. It provides an excellent example of the benefits and challenges in applying universal jurisdiction. Habré’s case was groundbreaking in that it was the first trial of an ex-leader by an African Union-backed court. This was an outstanding victory in advancing the use of universal jurisdiction. On May 30, 2016, Hissène Habré was found guilty of crimes against humanity, rape, and sexual slavery in the Senegalese Extraordinary African Chambers courtroom. He was sentenced to life in prison.

The Chadian Association of Victims of Crimes and Political Repression (AVCRP) was founded in 1991 by Souleymane Guengueng and other survivors of Habré’s brutal regime to demand justice and compensation for victims. It later became the Association of Victims of the Regime of Hissene Habre (AVCRHH). The trial in Senegal began on July 20, 2015 requiring more than 20 years of accountability efforts that were victim centered – initiated, lead and carried to fruition.  Ninety three (93) witnesses, most of them travelling from Chad, testified about torture, rape, sexual slavery, mass executions, and the destruction of entire villages. If not for the tenacious campaigns for justice by determined victims the trial might never have happened in Senegal. They were supported by two Chadian lawyers – Jacqueline Moudeina and Delphine Djiraibe – with essential backing and assistance from Human Rights Watch (HRW), including their discovery of abandoned files of Habré’s political police which named thousands of victims. Ongoing efforts were carried out by a coalition made up of the AVCRHH, HRW, the International Federation of Human Rights Leagues (FIDH), Agir ensemble pour les droits de l’Homme (AEDH), and African Assembly for the Defense of Human Rights, (RADDHO), among others.

Hissène Habré was president of Chad from 1982 to 1990. He fled to Senegal after being deposed in 1990 by the current president, Idriss Déby Itno. A 1992 Truth Commission accused Habré’s regime of 40,000 political assassinations and systematic torture. In 2000, he was arrested and indicted in Senegal. Over the next 12 years, the trial against Habré kept pending because, after political interference by the executive, Senegalese courts ruled that they had no jurisdiction to try the case because the crimes were not committed in Senegal.

In the past 20 years, there has been an increase in the use of universal jurisdiction, mainly but not exclusively, by courts in European countries. Cases in European courts have involved crimes committed in Rwanda, the Democratic Republic of Congo, Afghanistan, Guatemala, Kosovo, Iraq, Liberia, Bosnia and Herzegovina, Argentina, and Syria, among others. The case against Habré conducted in Senegal set another precedent, similar to the 1999 case against the former Chilean dictator, Pinochet.

As demonstrated by the Habré case, when suspects cannot be prosecuted before the courts of the country where the crimes were allegedly committed or before the International Criminal Court due to its statute, universal jurisdiction becomes an important safety net to ensure that suspects of atrocities do not enjoy impunity in a third state.

The African Union has encouraged its member states to adopt universal jurisdiction legislation against war crimes, crimes against humanity and genocide. At the same time, during the 19th Summit of the African Union Assembly, in 2012, members raised their concerns regarding “abuse of the universal jurisdiction.” One area of concern originated from the influence of politics on the process, seen as biased, and which impinged upon the sovereignty of African nations. In response, the African Union adopted a Model Law on Universal Jurisdiction. In 2014, the South Africa Constitutional Court provided a guide and mandate to investigate crimes based on universal jurisdiction.

In the Habré case, Belgium provided crucial pressure to prosecute the case, seeking his extradition for trial. Belgium’s universal jurisdiction legislation came into force in 1993 and included universal jurisdiction over crimes against humanity and genocide in addition to war crimes. A wide variety of cases show the important impact universal jurisdiction has for victims to seek justice and fight against impunity.

The trial in Senegal did indeed set a precedent. In fact, the use of universal jurisdiction by national courts is still a rare phenomenon. States have taken few steps to ensure the actual implementation of universal jurisdiction in their courts. Among the barriers are the vague definition of specific crimes, the failure to incorporate the principle into domestic law, and the difficulty to provide evidence in areas like investigation, documents and witnesses.

Even if universal jurisdiction is not possible in many cases, international criminal jurisdiction compensates for some of the weaknesses of domestic criminal jurisdiction. Therefore, universal jurisdiction has been serving as a wake-up call to tyrants everywhere. Universal jurisdiction is a tool that can be a strong lever in the fight against impunity and giving hope to victims that they can bring their tormentors to justice.  

Image: Stephanie Hancock/Human Rights Watch

New Tactics in Human Rights does not advocate for or endorse specific tactics, policies or issues.

What we can learn from this tactic: 
Obtaining legal justice is necessary for peace, healing, and moving forward. The ICC is a legal tool that can hold powerful actors accountable for their actions, but the limitations of their jurisdiction means that some of the worst perpetrators evade arrest. 
This tactic raises questions such as: Can there be peace without justice? How can a country heal if the perpetrators are granted impunity? 
When working in regions where human rights abuses are widespread, and violations are spearheaded by heads of state, organizations need to exhaust every legal mechanism available to ensure the realization of justice. 
Failure to ensure justice promotes a cycle of abuse. A strong threat of legal recourse can act as a deterrent against potential rights abusers. Without legal mechanisms to backup such threats, there is nothing preventing future abuses. 
Trials are an important aspect for healing. They serve as stages for victims to share their stories and have their voices heard. By using factual evidence, trials shed light on the events that took place, and document them for history. 
It is important to recognize that legal mechanisms require long term investment from not only the organization, but the victims being willing to pursue justice and accountability in this way. 
See this case study for another example of universal jurisdiction as a legal tactic.